Citation Nr: 1505429
Decision Date: 02/05/15 Archive Date: 02/18/15
DOCKET NO. 12-30 892A ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania
THE ISSUE
Entitlement to service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD) and as secondary to service-connected traumatic brain injury (TBI).
REPRESENTATION
Veteran represented by: New Jersey Department of Military and Veterans' Affairs
WITNESSES AT HEARING ON APPEAL
Veteran and his spouse
ATTORNEY FOR THE BOARD
T. Carter, Associate Counsel
INTRODUCTION
The Veteran served on active duty from November 1976 to November 1979. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. During the course of the appeal, the claims file was transferred to the RO in Philadelphia, Pennsylvania.
In October 2014, the Veteran and his spouse testified at a video conference hearing held before the undersigned Veterans Law Judge (VLJ). A copy of the transcript is of record in the Virtual VA electronic claims file.
This appeal was processed using the Virtual Benefits Management System (VBMS). The Virtual VA electronic claims file also contains additional documents pertinent to the present appeal, including VA treatment records dated from March 2013 to May 2014. Accordingly, any future consideration of the case should take into consideration the existence of these electronic records.
The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required.
REMAND
A remand is required in this case to obtain identified VA treatment records, verify the Veteran's periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA), verify the Veteran's alleged in-service stressor at Camp Pendleton, obtain an addendum VA opinion for psychiatric disorders other than PTSD, and obtain a VA examination and medical opinion for PTSD.
First, remand is required to obtain VA treatment records. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim, including making as many requests as are necessary to obtain relevant records from a Federal department or agency, including, VA medical records. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159(c)(2) (2014). At the February 2014 Decision Review Officer (DRO) hearing, the Veteran stated he received treatment from a Vet Center in Trenton beginning in 2000 and that the facility no longer exists. He also noted at the October 2014 Board hearing that he began to seek treatment at a VA facility in Sewell, New Jersey as early as 2005. VA treatment records from the identified Vet Center facility and from the Philadelphia VA Medical Center (VAMC) and Gloucester Community Based Outpatient Clinic (CBOC) in Sewell, New Jersey dated prior to March 2010 have not been obtained and associated with the electronic or paper claims file. Therefore, these identified records must be retrieved and associated with the other evidence already on file for the Board to review.
Second, a remand is needed to verify the Veteran's periods of ACDUTRA and INACDUTRA before the start of active duty in November 1976. Review of the file reveals that his DD Form 214 documents active duty service from November 1976 to November 1979 with 10 days of prior inactive service, which includes a relevant time in question regarding the alleged occurrence of a service stressor at Camp Pendleton discussed below. At this time, the evidence currently of record does not clearly specify when he was on ACDUTRA and INACDUTRA before the start of active duty in November 1976.
Third, during the course of this appeal, the Veteran asserted that service connection is warranted for PTSD, in part, because of a death he witnessed during Advanced Infantry Training (AIT) while at Camp Pendleton in California. He has asserted this event occurred either in the spring of 1976 (March to June) or the spring of 1977 (March to May). In April 2011, a request was made to the Marine Corps Archives and Special Collections for verification of this alleged stressor event for the dates of February 24, 1977 to April 29, 1977. A May 2011 response from this facility noted the "requested records are not resident in our collection." The Board finds that the 2011 attempted search is inadequate because does not encompass all of the Veteran's proposed dates of occurrence for this stressor event nor his identified Company of Double Time Delta, as noted by the Veteran at the February 2014 DRO hearing. Therefore, an additional attempt to verify this stressor event from all available sources, to include the National Personnel Records Center (NPRC), United States Joint Services Records Research Center (JSRRC), and the Veteran's unit records, should be made.
Fourth, a remand is required to obtain an addendum opinion regarding the aggravation prong of the secondary service connection claim. Where VA provides the Veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In a secondary service connection claim, a medical opinion that a disorder is not the result of an already service-connected disability does not address the issue of aggravation. El-Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013). Additionally, an opinion must address the relevant evidence of record. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Here, the May 2014 VA examination report and medical opinion for mental disorders did not address whether the Veteran's TBI aggravated any psychiatric disorder, specifically the diagnosis of depressive disorder.
Lastly, a remand is required to obtain a VA examination for PTSD, which has not been afforded in this case. Review of the record shows a diagnosis of PTSD, as noted in VA treatment records by a social worker in August 2010, a doctor of osteopathic medicine in September 2010, and an attending psychiatrist in March 2013 and April 2014. Specifically, the September 2010 VA treatment record documented a diagnosis of PTSD from military trauma. The Veteran has also asserted service connection is warranted for PTSD as secondary to his service-connected TBI and due to in-service assault, particularly harassment from two drill sergeants, while in basic training at Paris Island, South Carolina. Of record are January 2014 statements from the Veteran's brothers regarding their observance of the Veteran's behavior and state of mind change before and after military service. The Veteran also testified at the DRO and Board hearings that since separation from service he withdrew from family, has night sweats and nightmares, and felt like everything was falling apart. The Veteran's wife attested to the Veteran's statements of isolation at the Board hearing.
Therefore, a VA examination for PTSD should be afforded to the Veteran to verify whether the Veteran has a diagnosis of PTSD in accordance with the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-V); determine if a personal assault occurred, and if so, would it support a diagnosis of PTSD; and determine whether a diagnosis of PTSD is directly related to the alleged in-service events and/or secondary to his service-connected TBI. 38 C.F.R. §§ 3.304(f)(5), 3.310, 4.125(a) (2014).
Accordingly, the case is REMANDED for the following actions:
1. Obtain and associate with the claims file all outstanding VA treatment records, to include from the Vet Center in Trenton, New Jersey beginning in 2000 and from the Philadelphia VAMC and Gloucester CBOC from 2005 to 2010 and from December 2014 to the present. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his representative.
2. Contact all appropriate sources in order to verify the specific dates when the Veteran was on ACDUTRA and INACDUTRA prior to November 1976. Document for the claims file what repositories were contacted and why. If necessary, the Veteran should be requested to provide any assistance in obtaining this clarifying information. All verified dates of service and all responses received should be documented in the claims file. Any outstanding service personnel records (SPRs) and service treatment records (STRs) should also be obtained and associated with the claims file. Records concerning service merely denoting the amount of points he obtained, including cumulatively, are not helpful in this regard insofar as determining exactly when the Veteran was on ACDUTRA and INACDUTRA.
As these records are in the custody of a Federal department or agency, the attempts to obtain them are governed by 38 C.F.R. § 3.159(c)(2). The AOJ, therefore, must make as many attempts for these records as are necessary to comply with this VA regulation and must appropriately notify the Veteran and his representative if unable to obtain these records. 38 C.F.R. § 3.159(e)(1) (2014).
3. Contact JSRRC and any other appropriate sources, to include unit records from the Company of Double Time Delta and NPRC, in attempts to independently verify the Veteran's alleged stressor event, specifically the death of an AIT trainee at Camp Pendleton in California in the spring of 1976 (March to June) and spring of 1977 (March to May). If the search for corroborating records leads to negative results, the RO must notify the Veteran and his representative of this fact, explaining the efforts taken, describing further action, if any, to be taken, and affording them the opportunity to respond. The RO should also follow up on any additional action suggested by each appropriate source contacted.
4. After any additional records are associated with the claims file and verification of the Veteran's service dates and stressor event has been exhausted, schedule the Veteran for a VA examination to assist in determining the nature and etiology of all psychiatric disorders. The entire claims file should be made available to and be reviewed by the examiner, and it should be confirmed that such records were available for review. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided.
Based upon a review of the record and clinical findings, the VA physician must provide the following opinions:
a) Is the Veteran currently diagnosed with PTSD in accordance with the DSM-5? If not, provide a thorough explanation, to include addressing the prior diagnoses of record, to include in VA records from August 2010, September 2010, March 2013, and April 2014.
b) If there is a diagnosis and the in-service stressor event at Camp Pendleton is verified, is it at least as likely as not (i.e., probability of 50 percent) that the Veteran's PTSD is due to (related or had its onset during) this in-service event?
c) If there is a diagnosis, is at least as likely as not (i.e., probability of 50 percent) that a personal assault occurred to the Veteran during basic training at Paris Island, South Carolina? If so, is it at least as likely as not that event would support his diagnosis of PTSD?
d) If there is a diagnosis, is it at least as likely as not (i.e., probability of 50 percent) that the Veteran's PTSD is caused or aggravated (permanently worsened) by his service-connected TBI?
e) Is it at least as likely as not (i.e., probability of 50 percent) that the Veteran's other specified depressive disorder, mild, with anxious distress, is caused or aggravated (permanently worsened) by his service-connected TBI?
5. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2014). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable.
6. Review the examination report to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the AOJ must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998).
7. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim must be readjudicated. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review.
The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).
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K. MILLIKAN
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2014).